Legal uncertainties surround the European Union preparing for the European elections and a new Commission without knowing if the Treaty of Nice will continue in force or exactly how the Treaty of Lisbon takes over, if ratified.
The previous blog post ‘Lisbon Treaty ratification (Ireland)’ presented the main points of the memorandum discussed by the EU Committee of the Finnish Government on 25 February 2009 with regard to the state of play since the December 2008 European Council concerning Irish ratification and assurances from the member states (Lissabonin sopimus ─ Eteneminen joulukuun 2008 Eurooppa-neuvoston jälkeen ─ Tilannekatsaus).
The memo is available only in Finnish, but available to the public here:
European Parliament seats
We turn to institutional issues and implementation, as seen by the Finnish Government in its information to the Parliament.
Under the Lisbon Treaty twelve member states would gain seats in the European Parliament, whereas Germany would lose three. The Government presents the declaration of the December 2008 European Council to arrange the allocation of the additional seats as soon as possible (from 2010), when the Treaty of Lisbon has entered into force. Germany would be allowed to retain 99 MEPs until the end of the parliamentary term from 2009 to 2014, which would raise the total number above the maximum foreseen by the Lisbon Treaty (754 instead of 751).
The Government concludes that implementation of the declaration requires treaty level changes, insofar as they differ from the wording of the Lisbon Treaty. One possibility is a separate document, which would be ratified alongside the following accession treaty. Initially allowing the ‘extra’ MEPs into the European Parliament as observers of sorts has been discussed.
How to fill the additional seats will probably be solved at the national level, but these questions do not directly concern Finland or Ireland.
The Government repeats the declaration that the nomination of the new Commission and especially the President of the Commission should start directly after the European elections in June 2009. (There is no comment on President Sarkozy’s public speculation, against the unanimous conclusions during the French Council Presidency, about postponing the nomination of the new Commission President until after the second Irish referendum.)
The term of office of the current Commission is until the end of October. According to the Lisbon Treaty each member state would nominate a Commissioner until 2014, but the Treaty of Nice lays down that the number should become smaller than the number of member states.
The Government of Finland explains the main differences between Lisbon and Nice with regard to the appointment procedures, and it notes that the European Parliament sees them as significant. They concern the appointment of the Commission President, the list of Commissioners and the approval of the Commission. The High Representative becomes part of the equation under the Lisbon Treaty.
How to implement the political agreement in December to retain one national from each member state as Commissioner after 2014, if the Lisbon Treaty enters into force, is seen as problematic legally. According to the wording, the European Council could change the number of Commissioners, but permanent representation for all member states goes against the objective of the provision.
If the larger Commission is enshrined by treaty level amendments, it would be more difficult to reform the size (downsize) the Commission in the future. There is time until 2014, and the treaty could be amended simultaneously with an accession treaty.
EU Council Presidency
The memorandum explains that the rotating Council Presidency continues under Lisbon, modified by the chairmanship of the High Representative (foreign affairs configuration) and the (semi)permanent President of the European Council. The Finnish Government refers to the December 2008 declaration by the European Council on transitional arrangements. Should the Lisbon Treaty enter into force during a Council Presidency, the current holder would continue until the end of its turn. In practice this could concern Sweden or Spain.
Preparatory work ─ Ireland
The memorandum states that preparatory work at EU level regarding the Irish arrangements has not started, but it expects that the Permanent Representatives will discuss these issues later in the spring. The spring European Council (19 to 20 March) may hear a report on the situation, but a real discussion at European Council level is expected on 18 to 19 June.
Preparatory work generally
The Finnish Government notes that preparatory work to implement the Lisbon Treaty was done especially during the Slovenian Council Presidency, during the first half of 2008.
The blog post ‘Lisbon Treaty implementations’ (29 June 2008) referred to Slovenian and Finnish material at the time:
The memorandum notes that preparatory work ceased after the Irish referendum result. Especially the European External Action Service requires preparation.
The Czech Council Presidency programme mentions that the continued work depends on the ratification timetable, but the Czech Government has not given more precise indications about when the preparations could start.
Comments on preparation and implementation of the Lisbon Treaty
Regardless of different opinions about the Lisbon Treaty, the questions mentioned and many details have to be prepared for implementation, should the amending treaty enter into force (as 27 governments have agreed and 25 national parliaments approved).
The member states (the Council) are responsible for most of these issues, but there has been a deafening silence for a long time.
The Finnish Government’s memorandum confirms this sad state: the minimal EU level preparation of the Irish ratification issues and a total lack of common preparatory work of general implementation questions.
Firstly, the Council has to start preparing the implementation of the Lisbon Treaty. If the Czech Council Presidency continues to sit on its hands, Sweden will have even more catch up to do than previously thought.
Secondly, the Council must adopt an open and transparent mode of operation. This requires a timetable which facilitates a constructive debate with the European Parliament, national parliaments, think-tanks, researchers and the public.
This means publishing regular, comprehensive and reasoned updates of preparatory work for public debate. One of the major questions is the European External Action Service (EEAS).
Where the Commission has a leading role to play in preparing proposals (for instance the European Voluntary Humanitarian Aid Corps, EVHAC), it should set a good example by preparing and consulting openly.
All preparatory proposals should be added as a thematic whole to the web pages about the Treaty of Lisbon, in order to make them visible and easy to find.
The European Parliament seems to be the only institution working on the Lisbon Treaty implementation issues in an open manner.
We are going to take a look in a coming blog post.